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The Constitution of the United States of America
A surprise intermission for Some Constitutional Amendments
Editor’s Note: My hard drive, like any writer’s, is full of old unfinished drafts of half-baked ideas I gave up on. Like any writer, I will never delete them and I will never look at them. The other day, I opened one of these files by mistake and found a miracle: an article from 2018 that I only vaguely remember starting, but which I apparently finished and polished.
In my series, Some Constitutional Amendments, I’ve tried to present a positive vision of how the Constitution could be more true to itself. However, there is another approach I could have taken. Apparently, in 2018, I took it.
What I’ve typed up for you today is a copy of the Constitution of the United States. An earlier, unused draft of the Constitution, for comparison, can be found at the National Archives.
The Constitution of the United States of America
We the People, in order to clarify how things actually work, do ordain and e-publish this Constitution for the United States of America.
All legislative Powers herein granted (or later imagined) shall be vested in a Congress of the United States, which shall, in turn, transfer those Powers to other branches as quickly as possible in order to retain plausible deniability.
The House of Representatives shall be composed of Members chosen every second Year by the Executive Committee of the Political Party which has a Cook PVI advantage of +5 or more within each district; or, if neither Party enjoys such advantage, by the Vague Feelings of Voters who only turned out to vote for President and have never heard of either Party’s House candidate but may as well vote for the Guy from the same Party, right?
Representatives and direct Taxes shall be apportioned among the several States included within this Union, according to their respective Numbers, as determined by the Decennial census. However, apportionment is a drag for the IRS, so all actual Taxes shall be creatively interpreted so they don’t fall under this provision.
The Number of Representatives shall be 435, because it’s been ninety years since Congress exercised its apportionment power and it’s forgotten how to.1
The Majority Party shall chuse the House’s Speaker and other Officers based on their fundraising Numbers; and the Majority Party shall have sole Power of Impeachment. And the standard for impeachment shall be whether promising to impeach energizes your base more than it angers moderates.
The House shall approve Bills by the rule of simple Majority of the Majority Party. A Speaker who allows a bill to pass simply because it enjoys support from the Majority of the People's elected Representatives, when it is not also supported by fully half his own Party's members, shall be said to have "lost control of his caucus" and become eligible for replacement.
The Senate of the United States shall be composed of two Senators from each state, chosen in exactly the same fashion as the House for some reason; provided, however, that Senatorial “districts” shall be so Mind-Numbingly large, with a single Senator representing as many as 39 million people, that it is Inconceivable that anyone thus “popularly” elected could have the faintest connexion to the voters she allegedly represents.
The Vice President of the United States shall break tie votes in the Senate, but otherwise shall never, ever appear on the Senate floor to Preside over it, despite that being the sole duty which this Constitution demands of him.
The Senate shall Pretend to be more deliberative and traditional than the House, even long after the direct election of Senators has erased every distinctive or valuable feature of the Senate.
The Senate shall have the sole Power to try impeachments. The standard for conviction shall be as follows: an administration official shall not be convicted unless caught in bed with a dead girl; a judge shall not be convicted unless caught in bed with a live boy; and a president shall not be convicted, because there’s no plausible twenty-first century scenario where enough minority-party Senators vote to convict the guy whose coattails got them elected.2
The Senate shall approve Bills by the rule of three-fifths majority.
The Times, Places, and Manner of holding Elections for Congress shall be prescribed in each State by the Court System thereof; but such Regulations may at any time be altered by the Court System. Congress’s only contribution is to occasionally pass election bills that trigger lawsuits, which are then resolved by the Courts; to be honest, we’re not really sure why this clause is in Article I.
The Congress shall be in more or less continuous assembly, mainly in order to stop the Executive from making recess Appointments, but with very long weekends and many vacations, amounting to over half the year, so that Members can spend a simple majority of their waking hours fundraising.
Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business. A smaller number may be authorized to compel the Attendance of absent Members, but this shall only actually happen in elaborate stunts on House of Cards, because each House shall routinely conduct business without a quorum anyway, using procedural trickery and the Power of Pretend.
The majority party in each House may determine the Rules of its Proceedings, issue Censures to express vague toothless displeasure at minority-party irritants, issue other Censures to help make majority-party scandals Go Away, and expel Members who have been so gauche about their bribery that they got caught, tried, and actually convicted of it in a Court of Law.
Each House shall keep a Journal of its Proceedings, and publish the same every day on Congress.gov, which is actually a pretty slick website, especially compared to what Citizens in the Founding generation had.
The Senators and Representatives shall receive a Compensation for their Services, around $170,000, which shall be enough to place them Comfortably in the top 5% of all Americans by income. On top of that, they shall also get a $1.3 million annual allowance for travel, office space, and a staff of up to 18 personal servants.
The American press shall agree to pretend that this income is really pretty modest, because, compared to the income Congressmen could make by retiring and going on the speaker circuit, or by becoming corporate lobbyists, or by leveraging their prestige in any of a thousand legal and illegal ways, it actually is pretty damn modest.
For any Speech or Debate in either House, the Members shall not be questioned in any other Place, especially not as to whether they actually read the underlying four-thousand page bill. They shall be empowered to deliver their Speeches before an otherwise-empty Chamber so they generate good sound-bites on C-SPAN.
All Bills for raising Revenue shall originate in the House of Representatives, unless they originate in the Senate.3
No bill which shall have already run the gamut of passing the House of Representatives and the Senate shall become a Law unless it is also supported by the President of the United States.
The President’s veto may be overridden only if the opposite Party controls significant majorities in both Houses and the President’s net approval rating is low enough to encourage major defections from the minority. Unless the stars align in just this way, the President's veto will stand.
The President shall veto any bill which constrains his power in any way, but sign any bill that expands his power.
You can see where this is going.4
The Congress shall have the Power:
To lay and collect taxes, duties, imposts, and excises, and to spend the proceeds on direct welfare programs for individuals, the overwhelming majority of which shall go to old people, because they vote;
To borrow Money on the credit of the United States, and to symbolically limit borrowing via a "Debt Limit," as long as borrowing never slows and the Debt Limit is always increased whenever danger arises of it actually doing something;
To exercise plenary police power over the states under the guise of regulating "interstate commerce;"
To trespass onto the fields of private farmers and burn their crops to the ground (crops which were grown to feed other animals on the farm, not for interstate sale), again because that is somehow considered "interstate commerce;"
To promote the Progress of Science and Useful Arts, by securing to Authors and Inventors the exclusive right to their respective Writings and Discoveries, for all eternity. This ensures that nobody else ever gets to actually use those Writings or Discoveries to advance Science or Culture without paying a huge rentier fee to a mega-corporation that acquired the rights thirty years before anyone now living was born;5
To establish Post Offices, and name them for obscure local characters dredged up by the homestate senator;
To impotently cheer or jeer the President's regulation of Commerce with foreign nations;
To cheer or jeer the President's response to Piracies, Felonies on the high Seas, and Offenses against the Law of Nations;
To cheer or jeer the President's declarations of war, and to wonder occasionally what a "Letter of Marque and Reprisal" actually is and why it was written here.
To renew funding for the largest military in the world every two years, because those silly Founders put in a two-year rule that they thought would safeguard the spirit of liberty against the decadent influence of a large standing army, which incidentally is also a reason they were so hepped up about the Right to Bear Arms.
To control state budgets in detail by offering vast amounts of money to States willing to work the Federal government's will on the Federal government's terms. And to pay for these incentives by taxing vast amounts of money from other States, especially any unwilling to Play Ball. And this gun-to-their-head coercion of the several sovereign states shall be known as "cooperative federalism;"
To cheer or jeer the Federal Reserve's coinage of Money, its regulations of the Value thereof, and of foreign Coin; likewise to cheer or jeer NIST's Standards of Weights and Measures.
To maintain direct, absolute rule over a single city of nearly a million people, where vast amounts of wealth and knowledge are concentrated, while simultaneously insisting that the United States is not the Roman Empire.
To hold Hearings, for the purpose of creating campaign footage.
To do anything else the courts think is a good idea, whether necessary, proper, or otherwise, so long as it in no way diminishes the power of the President or of the self-same courts or gets in the way of fundraising.
The Slave Trade is banned, because so is slavery. See, not all our modern changes were bad!
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless it is done safely out of the sight of embarrassing News cameras, ideally Overseas.
No Bill of Attainder or ex post facto Law shall be passed, there being no need for either; the U.S. criminal code is so large and vague that any prosecutor worth his salt can build (or ignore) an impregnable felony case against any U.S. citizen at any time anyway.
No Tax or Duty shall be laid on Articles exported from any State. There’s no joke here; this bit held up pretty well.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; by willful Misinterpretations of the Law by an Executive who wants something and thinks nobody has standing to sue; or by Inaction, since over two-thirds of spending is now based on self-renewing "permanent" appropriations to absolve your Congresscritter of the responsibility to actually vote yea or nay upon them.
No Title of Nobility shall be granted by the United States: we shall instead identify our Aristocracy by their Ivy League degrees.
No State shall exercise any Power, but at the Pleasure of the Federal Government. Any State that tries shall have its Highway and Medicare money Cut Off, probably by the Executive.
The executive Power shall be vested in a President of the United States of America, along with the legislative Powers aforementioned, additional vast legislative Powers delegated to the Administrative state, and any other legislative Powers the President cares to exercise on behalf of Senatus Populusque Americanus. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. These Electors shall follow an Astonishingly elegant and complicated Ballet designed to ensure their wisdom, independence, freedom from external Influence, and general Fitness to thoughtfully discuss and ultimately select the best possible American citizen to serve as President. All this must be done to allow the Electors to serve, as our Founders intended, as the Republic's principal Bulwark against the dangerous foolishness of mass, popular, national democracy. The Electors shall then, without fail, render the entire exercise moot by voting for whichever Candidate won a bare plurality of popular votes in their State on Election Night.
Only a natural born Citizen of the United States who has attained to the Age of thirty-five Years shall be eligible to the Office of President, facilitating America's dumbest Quadrennial argument about whether a Candidate is secretly Kenyan or, Heaven forfend, Canadian.
In Case of the President's Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, so it is truly bizarre that so many Presidents chuse their Running Mate on the basis that they need to "balance their ticket" or appeal to this or that constituency, since there's a good Chance the Vice President will be setting the Agenda in a year or two and surely the People would prefer a new President whose outlook is similar to the one they actually Elected, but that's None of My Business.
The President shall receive a Compensation for his Services, which shall be just like the aforementioned Emolument for Members of Congress, only much more so.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." But be aware that he's talking about this Constitution, not the putative Constitution in the National Archives, else the Oath makes liars of them all.
The President shall be Commander in Chief of the Army, Navy, Air Force, Marines, Coast Guard, National Guard, and Space Force.6 He may require the Opinion, in writing, of the principal Officer in each of the executive Departments. He cannot personally exercise the vast legislative Powers of the executive Officers, but may Direct or Dismiss them at pleasure, so, ha ha, he really can. He shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment, because wealthy donors and loyalist cronies can't nullify Justice themselves, can they?
He shall have Power to make Treaties, provided two-thirds of the Senators concur, or may enter into Treaties on his own with zero Senators concurring and just hope the next President is too embarrassed to withdraw. He shall nominate Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. The Senate shall confirm these nominees, by simple majority, if they are competent and personally inoffensive, even if the nominees' intentions and legal philosophy mean their competence will be knowingly employed to undermine this Constitution. If the Senate declines to confirm a nominee, this is either "seat-stealing" obstruction or perfectly normal political hardball, depending on whether the Party doing it is the same as the Party you support or not.
The President shall have the Power during the Recess of the Senate to fill up all Vacancies with temporary Officers who are too incompetent, malignant, or personally Offensive to win Senate approval.
He shall from time to time deliver a big Speech to Congress, conveying absolutely no Information of the State of the Union, and repackage such Measures as he has long supported to rally the large televised Audience, thereby enabling him to blame Congress when these Initiatives come to nothing while giving the Media something to Chatter aimlessly about for a couple Weeks. In Case of Disagreement between both Houses, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper, which, in the last days of the Republic, is going to play out just like it did in Star Wars Episode III. He shall receive Ambassadors and other public Ministers at fancy Dinners; he shall Commission all the Officers of the United States; and shall take Care that the laws he personally thinks are sensible and important be faithfully executed.
The Supreme Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges shall hold their Offices for life, and shall, at stated Times, receive for their Services, a Compensation, which will be not quite as lucrative as the Compensation in the other branches, but is accompanied by totally unlimited legislative, executive, and judicial Power, which is a hell of a drug.
The inferior Appeals courts, whenever two-thirds of an En Banc review shall deem it necessary, shall propose Amendments to this Constitution, or, on an Application of Certiorari following a division of opinions between the several Circuits, shall call for Amicus briefs proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by a simple majority of the Supreme Court.
While the text of this Constitution may thus be amended, said amendments may not themselves be amended again; this Principle shall be known as "stare decisis," and it shall stand absolutely inviolate unless Anthony Kennedy's lunch disagrees with his Tummy, in which case all Bets are off.
See Article I, Section 10.
See Article III.
The United States shall guarantee to every State in this Union a Democratic Form of Government, the spirit of Republicanism, indeed the very notion of it, having long since been stamped out in wave after wave of Populist erosion. The franchise, and its exercise, must be maximized, because surely the systemic breakdown of this Constitution, and the concomitant imperialization of the Union, largely brought on by attempts to give the People, as construed by the Aristocracy, more of a direct voice can be checked if we just give the People more of a voice.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States, since anyone who truly believes in anything Bigger than himself could never get Elected in a mass, national, democratic system, especially not after the invention of Cable News.
Rulings of the Supreme Court shall be the supreme Law of the Land, followed by Executive "interpretations" of legislation under Chevron v. NRDC, ratified Treaties, non-ratified Treaties, expressions of legislative intent, vague guesses at legislative intent, longstanding custom, actual legislation, promises made in campaign ads, and finally this Constitution.
The Constitution has not been tried and found difficult; it has been found difficult and left untried.
Is this the Constitution's fault, for establishing a framework that depended on the virtue and public-spiritedness of a free people? Or is it our fault, for failing to live up to the very modest virtues the Founders expected of us?
All I know is that we are operating, in practice, under a Constitution (described herein) that bears little resemblance to the one the Founders gave us and which we pretend to revere.
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As I said at the start, this article is five years old. It’s not quite what I would write today. For example, under the influence of the post-liberals, I now think that this “descriptive Constitution” should do more to describe the power wielded by the ideological press. (I oppose the post-liberals, but they make some good points.)
These days, I’m also forcing myself to be less cynical.
However, rewriting this article to reflect that sounded like work. Never look a miracle in the mouth. Besides, when I reread it, it made me laugh, and hopefully it made you laugh, too.
For more on how badly apportionment has broken down, without most Americans even realizing something is wrong, see “Expand the House, You Cowards.”
In June 2018, it was still a teensy bit edgy to say this! Two impeachments later, not so much.
For more on the failure of the Origination Clause, see “The People’s House Holds the Purse-Strings.”
For more on how the presidential veto has warped our politics in ways that would alarm our Founders and should alarm you, see “Geld the Veto.”
This is a joke. At the time that I wrote this, “Space Force” was still a punchline, nearly as potent as “covfefe” and “57 states” and “Is our children learning?” Netflix made a whole comedy series staring Steve Carrell called Space Force, and the writers decided the concept was so inherently funny that they didn’t need to write any jokes.
Gotta hand it to the Trump Administration on this one: Space Force is no longer a punchline.